2014 PLP 1415 (CLC)

LAL JAN KHATTAK J.

This regular first appeal is directed against the judgment and decree dated 22-7-2011 of the learned Additional District Judge-VI, D.I.Khan whereby recovery suit of the appellant instituted on the basis of a pro note has been dismissed.

2. Necessary facts of the case are that the appellant instituted a suit under Order XXXVII, C.P.C. against the respondent for the recovery of Rs.5,00,000 on the basis of a pro note executed by her on 28-10-2007. On summons, the respondent appeared before the court and filed application for leave to defend the suit. Before passing an order, by the court, on the leave to defend application, the appellant-plaintiff moved an application before the court to send the pro note along with the finger impressions of the respondent for comparison to the Finger Prints Expert for opinion whereafter decision be given in the case accordingly. This application of the appellant was accepted on 24-1-2009 and the learned trial Court on 15-4-2009 took samples of finger impressions of the respondent and dispatched the same along with the original pro note to the Finger Prints Expert at Peshawar for their inter se comparison. The sample slip of the finger impressions of the respondent and the original pro note were compared by the Finger Prints Bureau, Peshawar, report of which is as under:

"The impression now marked as `Q-1' on the pro note dated 28-10-2007, is DIFFERENT from the right and left thumb-impressions of Mst. Ameer Mai on her sample slip now marked as `S'."

3. On receiving report from the Finger Prints Bureau, suit of the appellant was dismissed by the learned trial Court on 8-9-2009 which dismissal was impugned in appeal by him before this court in R.F.A. No.54 of 2009 which was accepted on 21-6-2010 and the case was remanded to the trial Court for summoning the Finger Prints Expert and record his statement and then decide the case afresh. After such remand, the learned trial Court summoned the Finger Prints Expert and recorded his statement who was cross-examined by the parties whereafter the learned trial court dismissed the suit of the appellant in light of the report and statement of finger prints expert vide its judgment and decree dated 22-7-2011 which has now been impugned through the instant appeal.

4. Learned counsel for the appellant contended that Fareedullah, DSP of Finger Prints Bureau, Peshawar during his cross-examination as CW-1 admitted that they have not checked the finger impressions of the respondent available on the pro note rather finger impressions of the respondent affixed on the receipt of the pro note were compared. The learned counsel contended that when finger impressions available on the pro note were not compared at all with the sample slip then there is no legal worth in the opinion of the Finger Prints Expert which could not have been made a base for the dismissal of the appellant's suit.

5. As against the above, learned counsel for the respondent defended the judgment and decree of the learned trial Court being based on correct legal approach of law and facts of the case.

6. I have heard learned counsel for the parties and have also gone through the record of the case.

7. Perusal of the record reveals that the appellant himself moved an application before the trial Court for sending the original pro note in question and the samples of the finger impressions of the respondent to the Finger Expert for his opinion and then to decide the case on such report. The learned trial Court accepted his application and sent the original pro note along with sample slip of the finger impressions of the respondent to the Finger Prints Bureau which reported that there is difference between the finger impressions affixed on the document and the sample slip of the finger impressions of Mst. Amir Mai whereafter the learned trial Court dismissed the suit on 22-7-2011.

8. Contention of the learned counsel for the appellant that as the finger experts have not compared the finger impressions of the respondent on the pro note with the sample slip and instead finger impressions affixed on the receipt to the pro note have been compared with the sample slip, therefore, such report being inconclusive in nature cannot be made a base for dismissal of the suit of the appellant, is untenable, firstly, that receipt to the pro note is an integral part of the pro note which cannot be taken in isolation from the pro note and secondly, this court itself examined the original pro note at the time of hearing of the case and it was found that the finger impressions affixed on the face of the revenue receipts pasted on the pro note are not legible whereas the finger impressions on the receipt of the pro note, which is backside of the pro note, are clear enough and probably for this very reason the Finger Prints Bureau compared the finger impressions available on the receipt of the pro note with the sample slip of the finger impressions of the respondent.

9. Even otherwise report of the Finger Prints Bureau contradicts the stance of the appellant because it is not his case that the receipt to pro note has not been thumb-impressed by the respondent and even during the course of argument learned counsel for the appellant did not term the receipt overleaf the pro note being bogus or forged. The learned counsel for the appellant even did not ask from C.W-1 while cross-examining him about the reason for not comparing the finger impressions affixed on the front page of the pro note with the sample slip. Had he put any such question to the witness situation could have been cleared by him but now at this stage contention of the learned counsel to the above effect does not hold any ground.

10. Undoubtedly, a dent has been created in the case of the appellant by the report of the Finger Prints Bureau which cannot be repaired now. The above exercise was undertaken on the application of the appellant by the court and now he is bound to accept the result.

11. For what has been discussed above, this court has reached to a conclusion that there is no illegality in the judgment and decree of the learned trial Court which is hereby maintained and the appeal being bereft of any merit is hereby dismissed. AG/225/P Appeal dismissed.